Sunday, January 24, 2010

MILITARY PROSECUTORS WITHHOLD EVIDENCE; ARMY RANGER GOES TO PRISON FOR 25 YEARS FOR SHOOTING AL QAEDA OPERATIVE

Yesterday I posted about Australian hero Harry 'Breaker' Morant - this was actually a prologue to a current issue; the extraordinary case of American Army Ranger 1st Lieutenant Michael Behenna of Oklahoma.

1LT Michael Behenna

In March 2009 1LT Behenna was sentenced to twenty-five years for the premeditated murder of a detainee while serving in Iraq. He is currently serving his sentence at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

Another soldier from Behenna's platoon, Staff Sergeant Hal Warner, pleaded guilty to his involvement in the case and was sentenced to 17 months in prison. Warner is from of Braggs, Okla.

Michael Behenna's platoon in Iraq, 2007-2008

According to the prosecution Behenna killed Ali Mansur, a known al-Qaida operative, whom Behenna organized an attack on 1LT Behenna’s platoon in April 2008 which left two of Behenna's soldiers dead and another two wounded. Mansur was taken into custody in May of 2008 and then later ordered released. 1LT Behenna was instructed to escort him to his home.

En route there Behenna stopped in a secluded railroad culvert near Beiji, Iraq, and began questioning Mansur, seeking to obtain information about his terrorist confederates and the identity of those financially backing them. Up until then there is no dispute about the facts of the matter. It was what happened next that created the controversy.

During this interrogation that Behenna said Mansur suddenly lunged at him and so he shot him twice, in self-defense.

Behenna's lawyers claimed that Behenna fired one shot at Mansur as he had his arms raised and was lunging for the soldier's gun, then fired a second shot that apparently hit Mansur in the head as he fell.

The government, however, charged Behenna with premeditated murder. Prosecutors alleged that Behenna stripped Mansur naked, seated him on a rock and then executed him with a shot to the head.

Enroute

In the trial that followed, expert testimony was presented that would have exonerated Lt. Behenna. This testimony was deliberately withheld from the court.

1LT Behenna's defense lawyer, Army JAG Officer James Phillips - now a civilian lawyer - explains the episode, and his version of how the government conducted the subsequent Court Martial:

"Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad captured Ali Mansur at his home. They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members. The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time. If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture. There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home. But, that is not what happened.

"LT Behenna and the members of his squad decided that they would let the authorities investigate Ali Mansur. They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail. Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village. Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home. Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

"LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable. After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.

A Checkpoint in the Desert

"As a former JAG, I understand the need for the laws of war. I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions. If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail? Probably not."

EVIDENCE WITHHELD BY PROSECUTORS

One of the government’s expert witnesses; a highly respected Forensic expert, Dr. Herbert Leon MacDonell, Director of the Laboratory of Forensic Science in Corning, N.Y. Dr. MacDonell consulted in the O.J. Simpson case and participated in investigations into the assassinations of Sen. Robert F. Kennedy and Dr. Martin Luther King Jr. Dr. MacDonell insisted Behenna was innocent and he could prove it. His testimony would have proven that the angle of the gun shots and the blood spatter were consistent with self-defense not premeditated murder.

At the Court Martial, however, military prosecutors withheld exculpatory evidence provided by their own expert witness from the defense team until after the trial wrapped up.

The controversy revolves around a statement from Dr. MacDonell, where described how the evidence indicated Ali Mansur was killed. In an e-mail obtained by defense counsel after the trial was concluded, MacDonell wrote that he was "concerned" that he was not allowed to testify "and have a chance to inform the court of the only logical explanation for this shooting."

Dr. MacDonell stated, "As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers, from the evidence I feel that Ali Mansur had to have been shot in his chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle.

"Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot think of a more logical explanation," he continued.

"This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9 mm flattened out bullet which was tumbling… When I heard Lt. Michael Behenna testify (Thursday) as to the circumstances of how the two shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant's story fit the physical facts," he wrote.

"This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence," he said.

LIEUTENANT BEHENNA IS TELLING THE TRUTH

Dr.MacDonnell told Behenna's lawyer Jack Zimmerman, who had successfully represented one of the Haditha Marines, that he fully agreed with Behenna's account of what happened, essentially destroying the government’s case he had been called to support.

Incredibly, the key witness in the case was not called to testify in thecase. After telling prosecutors what the forensic evidence showed - that Behenna was guiltless - this expert witness was sent packing. Before he retrieved his coat from the prosecution room he told the three prosecutors, "The explanation that Lt Behenna just testified to was the exact same scenario I told you yesterday. Lt Behenna is telling the truth."

This dropped a bombshell on the government's case.

Despite the fact that prosecutors must disclose any exculpatory evidence they have to the defense, they denied having any such evidence despite having been told by their own expert witness that 1LT Behenna’s explanation was the only logical explanation.

Withholding of this evidence allowed prosecutors to argue that Behenna executed Ali Mansur while seated DESPITE THE FACT THAT forensic experts, including Dr. MacDonnell, agree that Ali was standing with his arms outstretched when shot.

After 1LT Behenna was convicted and sentenced in mid February 2009, the Defense, through Attorney Jack Zimmerman, made a claim that the trial was inherently unfair because a prosecution expert agreed with the defense experts that the forensic evidence suggested that Ali Mansur was probably standing at the time that he was shot. This was the central theme of the defense throughout the trial; Ali Mansur, although naked, had made a threatening move by standing up before he was shot by LT Behenna. This, combined with the fact that Ali Mansur was a suspected terrorist, should have lead the military panel to find that LT Behenna was legally justified in killing Ali Mansur.

In a sworn affidavit, dated April 21, Dr. MacDonnell explained how knowledge he acquired while waiting to testify in the case could have changed dramatically its outcome.

"When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility. My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence."

1LT Behenna was convicted of unpremeditated murder and assault by a military panel of seven officers, none of whom had ever seen a minute of combat or ever heard a word of MacDonald's suppressed testimony, largely due to the fact the evidence that would have proved he was not guilty was never allowed to be heard during the court-martial.

FORT CAMPBELL, Ky. — An Iraqi translator told a military jury at Fort Campbell on Wednesday that he saw an Army officer shoot and kill an Iraqi detainee.

The testimony came at the trial of 1st Lt. Michael Behenna, of Edmond, Okla., who is charged with premeditated murder, assault and making a false statement.

Behenna is accused of killing Ali Mansour Mohammed in May 2008 near Beiji, Iraq. If convicted of premeditated murder, he faces a mandatory life prison sentence without parole.

A second Fort Campbell soldier charged in the case — Staff Sgt. Hal Warner, of Braggs, Okla. — agreed to testify against Behenna as a part of a plea agreement.

The translator, identified in court as “Harry,” also said he saw Warner set fire to the detainee’s body with a grenade.

Harry served as an interpreter with Behenna’s platoon when they went out on missions. One of those missions was a trip to a local Iraqi leader’s house to get information about suspected insurgents in the area. Harry said Behenna had been told Mohammed was “a bad guy.”

Prosecutors have said that Behenna believed the detainee had information regarding a roadside bomb that killed two soldiers in Behenna’s platoon.

When the soldiers went to pick up Mohammed from his home, Harry said he watched Behenna repeatedly strike Mohammed on the back with his helmet during an interrogation. Warner, who also testified Wednesday, confirmed that he saw Behenna strike Mohammed, but said he was only struck once.

Mohammed was detained and questioned by interrogators until he was ordered to be released on May 16, according to the Army.

That day, Behenna took Mohammed aside and with Harry started questioning him again about giving information about insurgents in the area. Behenna verbally threatened the detainee, Harry said.

“He told him, ‘Today, I’m going to kill you,”’ he told the jury.

Harry testified that he believed the threat was a tactic to scare the detainee and did not believe that Behenna intended to kill him.

Later that same day, near an isolated railroad culvert, Behenna began interrogating the detainee again, this time with his pistol drawn, Harry said.

Harry said he translated Behenna’s questions, then pleaded for the detainee to cooperate.

“I told him ‘You’d better talk. Why do you put yourself in this situation?”’ the translator testified.

The translator also said the man then agreed to talk, but before Harry could translate, Behenna fired.

As the detainee started to slump over, he was shot again, Harry said.

“I didn’t exactly see where the bullets hit, but I saw him fall and I saw blood,” he said.

Warner, who was a short distance away when he heard the first shot, came running to the culvert with his flashlight and weapon.

“I could see what appeared to be Lt. Behenna with a pistol pointing at the detainee,” Warner said.

However, Warner said he moved the light and as a result, did not see the second shot until the muzzle flashed.

Warner initially was also charged with premeditated murder, but those charges were dropped as a part of his plea agreement with military prosecutors.

Warner said Behenna told him to “throw it,” and Warner tossed an incendiary grenade on the body. Later Warner said he disposed of the detainee’s clothing.

Judge Dickson during the mistrial motion and the military panel during the finding of fact had to weigh the direct testimony of witnesses against the expert testimony. In this case, the experts of both the defense and apparently one from the prosecution were in direct conflict with the eyewitnesses, Harry the interpreter and SSG Mitch Warner. In this case, there may be a reason that there was such a big discrepancy.

When this case was initially investigated, the Iraqi police were not the first on the scene. Members of Ali Mansur’s family and friends initially arrived to inspect the body. They tampered with the evidence, moved the body and moved the forensic evidence. The main police video was taken on a handheld cell phone. The evidence of the grenade fragments were turned over to the the Army’s Criminal Investigation Division by the Iraqi police after they had retrieved them from Ali Mansur’s family. There was literally no chain of custody on much of the evidence. At the Article 32 hearing, the Iraqi Pathologist misidentified Ali Mansur’s body and much of his autopsy seemed questionable. And, finally, SSG Warner’s testimony was not fully explored until less than a week prior to LT Behenna’s trial. Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.

This unreliable evidence, couple with conflicting eyewitness testimony, made it extremely difficult for the military panel to use experts as the basis for their final verdict. Unfortunately for LT Behenna, the military panel was in a position where they had to use their own judgment to determine whether or not to believe the defense’s expert witnesses.

This is why it may be difficult to determine whether or not the prosecution was out of line in not calling their own expert witnesses to the stand after the defense expert witnesses testified that Ali Mansur was probably standing at the time he was shot.

The day Michael Behenna left for Iraq, in 2007

Michael's family has established the DEFEND MICHAEL website, to get the word out and help develop Congressional support for clemency.

This is yet another example that you can't conduct a war like a law enforcement operation. Behenna knew Ali Mansur was dirty - and yet the Army in it's wisdom released the al Qaeda operative back into the custody of 1LT Behenna; whose platoon had been ripped apart by the al Qaeda-planned operation.

The Army shouldn't have released the al Qaeda operative, MOST CERTAINLY not to 1LT Behenna; we know what happened after that. Behenna decided to conducted an impromptu interrogation - something he wasn't trained to do - and predictably things got out of hand from there.

Once it went to Court Martial the Army sat on their own expert witness testimony; testimony that would have cleared Behenna of the 'premeditated' portion of the charges at very least.

13 comments:

This angers me so much. When I took my first job as a prosecutor, I was informed, by the AG I worked for, that my job was not to convict people, it was to see that justice was done. These prosecutors forgot what their job was.

Thanks for letting us know about this, I am completely disgusted with our government and the prosecutors. We donated what we could and signed up for email updates. Please keep your readers updated, thanks from Texas.

Serious answer: if everyone had your thought we would not have a volunteer army, there would be a draft. While as a disabled veteran who did two tours, I have no regrets. But I also didn't disobey direct lawful orders either. While this situation seems completely incomprehensible the fact remains a direct lawful order was disobeyed, when that happens people die, sometimes our own.

When are some of the military brass going to realize and face the truth that we are in a all-out war for the very existence of Western civilization? Are they listening to the Islamic-terrorists that say over and over that they intend to destroy us and bring back Sharia Law? The purpose of war is to defeat and destroy the enemy and destroy his will to fight at all costs.God protect Lieutenant Behanna.

as a fellow infantry officer who has been a similar situations, behenna shooting in 'self defense' is ridiculous considering all the non-lethal options you have with an unarmed prisoner. looks like a case of poor judgement and emotions taking over. the american military cannot condone this kind of action. it completely undermines every value we stand for.

First I would like to say, war is ugly. Second I believe there were many fails prior to the said event. I agree that the victim was probably a piece if crap, and got what he deserved. But, as a disabled vet myself I ask the question "is Behenna & Warner not guilty of anything?" First fail was mansur should have never been released, second fail was Behenna should have never been given the detail of returning the Mansur to his home. I believe the direct order was to return him, not interrogate him. If we as soldiers disobey a direct lawful order there are consequence. I also agree that Behenna had stressors in an environment no one can relate nor comprehend. But if all of us soldiers ran around taking matters into our own hand and disobeying lawful order war would be more of a chaos than it already is. I agree that Behenna has PTSD and was unable to execute his lawful order, but that is merely an argument for the sentencing phase. While my heart aches for Behenna it is in my opinion he sentence was too severe. I believe the crime was actually just he disobeyed an direct lawful order and mitigating circumstance commuted sentence to only a discharge of military service.